United States v. Sterling, 75 M.J. 407 (at least two general orders prescribe the manner in which religious accommodations to rules of general applicability of the Religious Freedom Restoration Act (RFRA), 42 USC 2000bb-1 (2012) (as amended), should be processed and facilitated in the military: Dep’t of Defense Instr. 1300.17, Accommodation of Religious Practices Within the Military Services (Feb. 10, 2009, Incorporating Change 1, Jan. 22, 2014), and Dep’t of the Navy, Secretary of the Navy Instr. 1730.8B CH-1, Accommodation of Religious Practices (Mar. 28, 2012)).

2014 (September Term)

United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid).

(a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy).

(in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose).

United
States v. Watson, 69 M.J. 415 (a discharge
regulation should not be infused
with a degree of clarity that was not available to the commander
exercising
discharge authority at the time of appellant’s discharge).

(in the present case, where
appellant received
notice of an administrative discharge prior to the execution of her
adjudged
dismissal and no fraud was involved in its issuance, by regulation,
appellant’s
discharge could only be revoked if it was not published by a
headquarters
authorized to approve the discharge and to issue a discharge
certificate;
because appellant’s commander was provided the express authority by
regulation
to serve as a discharge authority in the case of individuals subject to
adjudged dismissals, appellant’s discharge was in fact published by a
headquarters authorized to issue it, and it could not be revoked merely
on the
basis of a claimed deficiency in the commander’s exercise of her
discretion; as
such, appellant’s post-trial administrative discharge remitted the
unexecuted
dismissal; although the discharge regulation provided guidance as to
how the
discharge authority should exercise discretion in issuing a discharge
certificate, the manner in which the discharge authority exercised this
discretion did not remove that person from occupying the status of a
discharge
authority; accordingly, any mistake in the exercise of discretion by a
discharge authority did not fall within circumstances under which
revocation was
authorized by regulation).

(military departments have
ample authority to
designate by regulation who may or may not exercise discharge
authority; likewise,
military departments have the authority to issue regulations that have
the
effect of precluding an administrative discharge from taking effect;
the
decision as to whether an administrative discharge regulation should
include a
provision that both grants and withholds the power of a particular
discharge
authority over a specified class of cases rests with the military
departments).

2009 (September Term)

United
States v. Estrada, 69 M.J. 45 (an Army
regulation stating that after the
preferral of a charge, an administrative discharge certificate was
“void until”
the charge was dismissed or the convening authority took initial action
on the
case did not mean that an administrative discharge promulgated after
sentencing
automatically remitted a convening authority’s subsequent approval of a
punitive
discharge; instead, the convening authority’s subsequent approval of a
punitive
discharge superseded the previous, erroneously issued, administrative
discharge).

United
States v. Serianne, 69 M.J. 8 (the
self-reporting
requirement imposed on sailors by a Chief of Naval Operations
instruction to
notify their commanding officer of an arrest by civil authorities for
an alcohol-related
offense did not provide those sailors with the rights afforded by a
superior
competent authority in a self-reporting exclusion in Article 1137 of
the US
Navy Regulations, an exclusion that eliminates the reporting
requirement in
instances where a person is already criminally involved in offenses he
would
otherwise be required to report; as such, the instruction did not
provide a
legal basis for finding the accused derelict in the performance of a
required
duty when he failed to report an arrest for driving under the influence
of
alcohol, and the military judge did not err in dismissing the charge).

United
States v. Williams, 68 M.J. 252 (it is
well-settled that a government agency
must abide by its own rules and regulations where the underlying
purpose of
such regulations is the protection of personal liberties or interests).

2004

United
States v. Lundy, 60 MJ 52 (the parties to the
pretrial
agreement, counsel at trial, and the military judge all appear to have
overlooked the Army regulation (AR 600-8-19) that precludes a convening
authority from suspending a mandatory reduction in pay grade unless the
convening authority also suspends any related confinement or punitive
discharge; because this regulatory impediment resulted from a
departmental
action rather than a statutory mandate, the Army was free to modify the
regulation, create an exception, or grant a waiver; had the parties
taken the
impediment into account during negotiation of the pretrial agreement,
the
convening authority could have sought a waiver or exception at the
departmental
level or an alternative agreement could have been proposed).

2001

United
States v. Yarbrough, 55 MJ 353 (where appellant’s
challenge called for a legal construction of an Air Force Instruction,
Court of
Appeals for the Armed Forces adopted the Court of Criminal Appeals’
"reasonable" construction of the instruction, citing to cases
indicating that the Court of Appeals for the Armed Forces will defer to
a
service court’s construction of its own regulations).

(it is generally understood that the more specific provisions of a
regulation prevail over the more general).

(where Air Force Court of Criminal Appeals determined that Air Force
Instruction did not prohibit use of appellant’s substance abuse
information
where appellant did not "self-identify", Court of Appeals for the
Armed Forces adopted this determination as reasonable and held that
appellant
failed to sustain his burden of showing error so as to justify
application of
plain error doctrine).

2000

United
States v. Allen, 53 MJ 402 (28 CFR § 60.1 and
related
provisions of AFOSI Regulation 124-82 relating to obtaining the
concurrence of
an United States Attorney prior to seeking certain search warrants do
not
confer a protection upon the individual accused which is enforceable by
virtue
of the exclusionary rule; nor is the failure to coordinate with the
United
States Attorney unreasonable conduct by law enforcement which would
serve to
violate any of the accused’s Fourth Amendment protections).

(where the findings of the military judge showed that OSI officers
did not
seek the search warrant in issue, 28 CFR § 60.1 and related provisions
of AFOSI
Regulation 124-82 relating to obtaining the concurrence of an United
States
Attorney prior to seeking certain search warrants did not apply - a
civilian
law enforcement officer sought the warrant from a civilian judge).

United
States v. Ayers, 54 MJ 85 (a general court-martial
convening authority is authorized to publish general orders and
regulations; it
is not necessary for the commander issuing the general regulation to
sign it
personally; so long as the decisional authority, which is discretionary
in
nature, remains with the commander, the signature authority, which is
delegated, is wholly ministerial in nature).

(a general regulation is a proper subject of judicial notice).

(a general regulation is entitled to a presumption of regularity if
it
appears regular on its face).

(claim that a general regulation is not authentic or is not what it
purports
to be, is an evidentiary objection, based on lack of proper
authentication, and
is waived if not timely made).